Barclays Bank International Ltd v African Diamond Exporters (Pty) Ltd (2)

• Jurisdiction: South Africa
• Court: Witwatersrand Local Division
• Judge: Vermooten AJ
• Judgment Date: 01 May 1975
• Citation: 1976 (1) SA 100 (W)

Vermooten, A.J.:

This is an exception taken by the defendant to the plaintiff's particulars of claim annexed to its combined summons, on the

Vermooten AJ

ground that they lack averments which are necessary to sustain the action. For the sake of convenience I shall refer to the parties as plaintiff and defendant. In order to appreciate the import of the exception, it is necessary to set out some salient facts. From an affidavit, the relevance of which will become clear later, as well A as from pleadings and information given to me from the Bar, the following facts emerge.

The plaintiff issued its combined summons on 22 March 1973. The plaintiff, it is common cause, is a non-resident of the Republic of South Africa, being a banker carrying on business in London, England. It claimed payment of the sum of R136 502,61 on a condictio B indebiti, interest, and costs of suit. The pleadings took their normal course and were closed on or about 31 December 1973, the defendant's main defence pleaded, being an estoppel. On 31 January 1975 a pre-trial conference was held, attended by the attorneys and counsel, including senior counsel, on both sides. A few days later a point which had hitherto escaped everybody's notice was discovered. This was that the plaintiff being a non-resident of the Republic of South Africa, should C make the averment in its particulars of claim that it had Treasury permission for the defendant to make payment to it of the amount of the judgment awarded to it and for the transfer thereof to the plaintiff in the United Kingdom, the reason being that the defendant was not permitted to make payment to it of the amount claimed, without D permission having been granted by the Treasury in terms of reg. 3 (1) (c) of the Exchange Control Regulations, 1961, as amended, made in terms of sec. 9 of the Currency and Exchange Act, 9 of 1933.

Mr. Reynolds, the plaintiff's attorney and the deponent of the affidavit I have referred to, immediately took steps to obtain the necessary Treasury permission. This was telephonically granted on 5 February E 1975, the Treasury later explaining that in due course it would require to be appraised of the precise amount to be transmitted to plaintiff in the United Kingdom in the event of an award being made in its favour, as well as the date of such intended transfer. On 7 February 1975 Mr. Reynolds wrote to defendant's attorney drawing attention to the F judgment, of which he had been made aware, of MOLL, J., in Rhodesian Pulp and Paper Industries Ltd. v. Plastelect (Pty.) Ltd., 1975 (1) SA 955 (W), through which he had become aware of the point; stating that plaintiff had obtained the Treasury's permission, and dealing with consequential matters. On the same date defendant gave formal notice of its intention to amend its plea to raise the issue. It is common G cause that the two notifications crossed each other and were given independently of each other. Because the defendant was not prepared to consent tota proposed amendment in which plaintiff would seek to incorporate in its particulars of claim the averment to which I have referred, the plaintiff applied to this Court for leave so to amend its particulars of claim in the following terms:

1.

H By the addition thereto of the following new para. 17:

'17.

The Treasury has granted pen-mission to the plaintiff in terms of sec. 3 (1) (c) of the Exchange Control Regulations, 1961, as amended, made in terms of sec. 9 of the Currency and Exchange Act, 9 of 1933, for the defendant to make payment to the plaintiff of the amount of the judgment awarded to the plaintiff in this action, and for the transfer of the amount thereof to the plaintiff.'

Vermooten AJ

2.

By the substitution of the following prayer (3) for the existing prayer (3), the existing prayer (3) to become prayer (5):

'(3)

A Alternatively, an order declaring that the plaintiff is entitled to payment by the defendant of the said sum of R136 502,61, interest thereon tempore morae, and taxed costs of suit, when the plaintiff has obtained the permission of the Treasury of the Republic of South Africa, in terms of the said sec. 3 (1) (c), for the defendant to make such payment to the plaintiff.'

It was in support of that application that Mr. Reynolds made B the affidavit to which I have referred. The affidavit was annexed to the notice of motion.

From the affidavit the following facts, inter alia, appeared, which were not disputed by the defendant. The trial of this action had been set down in this Court for Monday, 17 March 1975. It was anticipated that the trial would last approximately five Court days. Preparations for trial had reached an advanced stage. Discovery had been made by both the C plaintiff and the defendant, 270 documents having been discovered by the plaintiff and 119 by the defendant. The pre-trial conference to which I have referred was held on Friday, 31 January 1975, attended by the attorneys and senior and junior counsel of both parties. It would be necessary as part of the plaintiff's case to call a number of witnesses from London, and all necessary arrangements have been made for the D witnesses to come to Johannesburg for the trial. Substantial costs had been incurred by both sides in preparing for the trial. If the trial could not now proceed because the action had to be commenced de novo, a material part of the costs already incurred by the parties would be wasted, and there would be a serious duplication of costs when preparations have to be recommenced, which could hardly be in E the interests of either of the parties.

Despite opposition by defendant, such leave to amend was granted by MELAMET, A.J., as he then was, on 4 March 1975, and the plaintiff's particulars of claim were duly amended accordingly. An application for leave to appeal against that judgment was refused. [*]

F On 14 March 1975 the defendant gave notice of the present exception.

As I have said, the trial of this action had been set down for hearing in this Court on 17 March 1975. When the parties appeared before me on that date I was informed that they had agreed that the exception only should be argued on that day, and that the hearing of the trial should meanwhile stand over.

G This was done.

The exception reads as follows:

'The defendant excepts to plaintiff's summons as being bad in law and lacking averments which are necessary to sustain an action for the following reasons:

1.

H Having regard to the provisions of sec. 3 (1) (c) of the Exchange Control Regulations of 1961, the plaintiff was, as a non-resident of the Republic of South Africa, obliged to obtain Treasury permission for the payment by the defendant to it of the amount claimed prior to the institution of action against the defendant.

2.

The plaintiff was obliged to allege in its summons, when issuing it, that it had obtained the necessary exchange permission for the

Vermooten AJ

payment to it of the amount claimed and, in the absence of such allegation, the summons lacked averments necessary to sustain an action against the defendant.

3.

A Having regard to the provisions of sec. 3 (1) (c) of the Exchange Control Regulations of 1961, valid permission for the plaintiff as a non-resident of the Republic of South Africa to receive payment from the defendant could not be given subsequent to the institution of the action against the defendant.

4.

B Having regard to the provisions of sec. 3 (c) of the Exchange Control Regulations of 1961, the plaintiff is not entitled to the order or declaration claimed in the absence of a valid permission given in advance of the action by the Treasury for the defendant to make payment to the plaintiff.

5.

C The permission on which the plaintiff relies is vague and not unconditional, and it is not a permission as contemplated by sec. 3 (1) (c) of the Exchange Control Regulations.'

The ground contained in para. 5 above was not argued by Mr. Philips, who appeared on behalf of the excipient (defendant). Even if it had been, I would have been unable to uphold it. Since the precise amount is to be fixed by the trial Court after hearing the evidence, and since...